Glenn A. Fine
U.S. Department of Justice
Senate Committee on the Judiciary
June 15, 2005
* * * * *
Thank you for inviting me to testify at this morning’s hearing on detainees. Unlike other witnesses at today’s hearing, my testimony will not focus on detainee issues related to ongoing military actions. Rather, I have been asked to testify regarding two Office of the Inspector General (OIG) reviews that examined the treatment of aliens detained on immigration charges as part of the Department of Justice’s (Department or DOJ) terrorism investigations after the September 11 attacks.
In my testimony today, I will summarize the major findings and recommendations from the OIG’s June 2003 report entitled “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks” and our report, released in December 2003, entitled “Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York.” Given the focus of today’s hearing, I will highlight the major findings from these investigations that relate to due process issues.
My statement is organized in four parts. In the first two parts, I summarize findings from the OIG’s June 2003 detainee report and the December 2003 supplemental review. Next, I discuss the corrective actions taken by the Department and others in response to the recommendations contained in those reports. Finally, I conclude my statement with a short description of an ongoing OIG review that is examining Federal Bureau of Investigation (FBI) observations and actions regarding alleged abuse of detainees at facilities controlled by the U.S. military, including Guantanamo Bay.
After the September 11 attacks, the OIG initiated a review to examine the treatment of aliens detained on immigration charges in connection with the Department’s September 11 terrorism investigation, known as PENTTBOM. The FBI initiated the massive PENTTBOM investigation to identify the terrorists who committed the September 11 attacks and anyone who knew about or aided their efforts.
One of the principal responses by law enforcement authorities after the attacks was to use federal immigration laws to detain aliens who were suspected of having possible ties to terrorism. Many of these individuals were questioned and subsequently released without being charged with a criminal or immigration offense. Many others were arrested and detained for violating federal immigration laws.
Our review determined that 762 aliens were detained on immigration charges in connection with the PENTTBOM investigation in the first 11 months after the terrorist attacks. All 762 aliens were placed on what became known as the Immigration and Naturalization Service’s (INS) “Custody List.” They were placed on this list, and referred to as “September 11 detainees, because of the FBI’s assessment that they may have had a connection to the September 11 attacks or terrorism in general, or because the FBI was unable, at least initially, to determine whether they were connected to terrorism.
The OIG review examined various issues relating to the September 11 detainees, including: 1) classification of those detained as September 11 detainees; 2) the timeliness of charging the detainees with immigration violations; 3) issues affecting the length of the detainees’ confinement, including the process undertaken by the FBI and others to clear individual detainees of a connection to the September 11 attacks or terrorism in general; 4) the detainees’ access to counsel; and 5) their conditions of confinement.
We focused on detainees held at the Metropolitan Detention Center (MDC) in Brooklyn, New York, operated by the Federal Bureau of Prisons (BOP), and at the Passaic County Jail (Passaic) in Paterson, New Jersey (a county facility under contract to the INS). We chose these two facilities because they held the majority of September 11 detainees and also because they were the focus of most complaints about detainee mistreatment.
When we issued our June 2003 report, we stressed that it was important to remember the context of our findings. In response to the September 11 terrorist attacks, the FBI had allocated massive resources to the PENTTBOM investigation, assigning more than 4,000 FBI special agents and 3,000 FBI support personnel to work on it within days of the attacks. The amount of information and leads about the attacks and potential terrorists that the FBI received in the weeks and months after the attacks was staggering. Moreover, as our report pointed out, the Department was faced with unprecedented challenges responding to the attacks, including the chaos caused by the attacks and the possibility of follow-up attacks. In conducting our review, we were mindful of this context and the circumstances confronting Department employees at the time.
Yet, while we recognized these challenges, we found significant problems in the way the Department handled the September 11 detainees. I will now summarize some of the major problems we found.
In the aftermath of the September 11 attacks, the FBI pursued thousands of leads relating to its PENTTBOM investigation, in New York and elsewhere, ranging from information obtained from a search of the hijackers’ cars to anonymous tips called in by people who were suspicious of Arab and Muslim neighbors who kept odd schedules.
If the FBI encountered an alien in connection with pursuing any of these leads, whether or not the alien was the subject of the lead, the FBI asked the INS to determine the alien’s immigration status. If the alien was found to be in the country illegally – either by overstaying his visa or entering the country illegally – the alien was detained by the INS.
The FBI then was asked to make an assessment of whether the arrested alien was “of interest” to its terrorism investigation. If the FBI indicated that the alien was “of interest,” “of high interest,” or “of undetermined interest,” the alien was placed on the INS Custody List and treated as a September 11 detainee.
These initial classifications by the FBI had significant ramifications for the detainees. First, the Department instituted a policy that any detainee on the INS Custody List had to be detained until cleared by the FBI. Although never communicated in writing, this “hold until cleared” policy was clearly understood and applied throughout the Department. As a result, the September 11 detainees were not allowed to be released on bond according to normal INS procedures and were not allowed to depart or be removed from the United States before FBI clearance, even if an Immigration Judge ordered their removal or the detainees voluntarily agreed to leave. Second, the initial classification decision by the FBI often determined where the detainees would be confined and therefore their conditions of confinement.
Our review found that these classification decisions were not handled uniformly throughout the country. FBI and INS offices outside New York City attempted to screen out or “vet” cases in which illegal aliens were encountered only coincidentally to a PENTTBOM lead or showed no indication of any connection to terrorism. In these cases, the alien was not placed on the INS Custody List and was processed according to normal INS procedures.
However, this vetting process was not used in the New York City area. Rather, the FBI in New York did not attempt to distinguish between those aliens who it actually suspected of having a connection to the September 11 attacks or terrorism from those aliens who, while possibly guilty of violating federal immigration law, had no connection to terrorism but simply were encountered in connection with a PENTTBOM lead. As a result, anyone picked up in connection with a PENTTBOM lead in the New York area was deemed “of interest” for purposes of the “hold until cleared” policy, regardless of the origin of the lead or any genuine indications of a possible connection to terrorism. For example, if an agent searching for a particular person on a PENTTBOM lead arrived at a location and found other individuals who were in violation of their immigration status, those individuals were detained and considered to be arrested in connection with the PENTTBOM investigation.
Even in the hectic aftermath of the September 11 attacks, we believe the FBI should have taken more care to attempt to distinguish between aliens who it actually suspected of having a connection to terrorism and aliens who, while guilty of violating immigration law, had no connection to terrorism but simply were encountered in connection with a PENTTBOM lead. In most parts of the country this was done; in New York, where the bulk of the September 11 detainees were arrested, it was not.
Our review found that many September 11 detainees did not receive notice of the charges against them in a timely manner. Normally, after an alien was arrested for violating federal immigration law, the INS notified the alien of the charges and initiated a removal proceeding by serving a Notice to Appear (NTA) on the alien and the Immigration Court. The NTA must include the alien’s specific acts or conduct that was in violation of the law.
Prior to the September 11 attacks, the INS was required by federal regulation to make this charging determination within 24 hours of arrest. The Department changed the regulation soon after the September 11 attacks to allow the INS 48 hours to make the determination. The revised regulation also included an exception to the 48-hour rule that provided that in the event of an emergency or other extraordinary circumstances, the charging decision could be made within an additional reasonable period of time. However, the regulation did not define “extraordinary circumstances” or “reasonable period of time.” Moreover the regulation contains no requirement as to when the INS must notify the alien of the charges; the regulation only addressed when the INS must make its charging decision.
Our review determined that the INS did not record when the charging decisions were actually made, but it did record when the charges were served on the alien. According to the INS, before the September 11 attacks its goal was to serve charges on aliens in writing within 48 hours of arrest. After September 11, the INS’s goal was to serve charges on aliens within 72 hours.
We found that the INS served only 60 percent of the September 11 detainees with NTAs within its goal of 72 hours. Many detainees did not receive their charging documents for weeks, and some for more than a month, after being arrested.
The delays in receiving notice of the charges affected the September 11 detainees in various ways. First, it did not give detainees notice of the specific immigration charges they faced. Second, it affected the detainees’ ability to obtain effective legal counsel given the lack of specific charges. Third, it delayed the detainees’ opportunity to request bond re-determination hearings and seek release.
Our review found that the Department’s “hold until cleared” policy was based on the belief – which turned out to be erroneous – that the FBI’s clearance process would proceed quickly. For example, many Department officials told us that they believed that the FBI would take a few days or a few weeks to clear aliens arrested on PENTTBOM leads but who had no additional indications of a connection to terrorism.
That belief was inaccurate. The FBI cleared less than 3 percent of the 762 September 11 detainees within 3 weeks of their arrest. The average length of time from arrest of a September 11 detainee to clearance by FBI Headquarters was 80 days. More than a quarter of the 762 detainees’ clearance investigations took longer than 3 months.
The delays in the clearance process were attributable to various factors. The FBI did not provide adequate field office staff to conduct the detainee clearance investigations in a timely manner and failed to provide adequate FBI Headquarters staff to coordinate and monitor the detainee clearance process. We also found that, in New York, once the FBI investigated a lead and the INS arrested an alien in connection with the lead, FBI agents generally moved on to the next lead rather than investigate or clear the person arrested. In addition, FBI Headquarters did not set any time limits for completing the clearance investigations. The FBI also requested CIA checks on the detainees, but the FBI often took months to review the information it received from the CIA. We also found delays between when local FBI offices cleared the detainees and when FBI Headquarters processed the final clearances.
The untimely clearance process for September 11 detainees had significant ramifications for the detainees, who were denied bond and were not permitted to leave the country until the clearance process was completed, even when they had received final orders of removal or voluntary departure orders.
The Department instituted a “no bond” policy for all September 11 detainees as part of its decision to hold the detainees until the FBI could complete its clearance investigations. Several INS officials told the OIG that, at least initially, they expected the FBI to provide them with information to present at bond hearings to support the “no bond” position. Instead, INS officials told the OIG that often they received no information from the FBI about September 11 detainees and, consequently, had to request multiple continuances in the detainees’ bond hearings.
Our review determined that the INS raised concerns about this situation, particularly when it became clear that the FBI’s clearance process was much slower than anticipated and the INS had little information in many individual cases on which to base its continued opposition to bond. As a result, the INS was placed in the position of arguing for “no bond” even when it had no information from the FBI to support that argument, other than the fact that the detainee was arrested in connection with a PENTTBOM lead.
In late January 2002, the FBI brought this issue to the Department’s attention, and the Department abruptly changed its position as to whether the INS should continue to hold aliens after they had received final departure or removal orders until the FBI had completed the clearance process. Beginning in late January 2002, the Department allowed the INS to remove aliens with final orders without FBI clearance.
Although the INS made the decision where to house September 11 detainees, it relied primarily on the FBI’s assessment of the detainees’ possible links to terrorism. Aliens deemed by the FBI to be “of high interest” to its terrorism investigation generally were held in BOP high-security facilities, such as the MDC in Brooklyn, New York. Generally, although not always, aliens deemed by the FBI to be “of interest” or “of undetermined interest” were detained in lower-security facilities. FBI agents generally made this assessment of interest without guidance or standard criteria, based on the limited information available at the time of the aliens’ arrests.
Where a September 11 detainee was confined had significant ramifications because, as we describe below, detainees held at the MDC experienced highly restrictive conditions of confinement.
In examining the treatment of detainees at the MDC, we appreciated the fact that the influx of high-security detainees stretched the MDC’s resources. Its employees often worked double shifts during a highly emotional period of time, close to the scene of the terrorist attacks. We also recognized the uncertainty surrounding the detainees and the chaotic conditions in the immediate aftermath of the September 11 attacks.
However, our review found serious problems in the treatment of the September 11 detainees housed at the MDC. First, the BOP imposed a total communications blackout for several weeks on the September 11 detainees held at the MDC. Then, after the blackout period ended, the MDC combined a series of existing policies and procedures for inmates in other contexts and applied them to the September 11 detainees. For example, the MDC initially designated the detainees as “Witness Security” inmates in an effort to restrict access to information about them, including their identity, location, and status. Designating the detainees at the MDC in this manner frustrated efforts by detainees’ attorneys, families, and even law enforcement officials to determine where the detainees were being held. As a result of this designation, we found that MDC staff frequently – and mistakenly – told people who inquired about a specific September 11 detainee that the detainee was not held at the facility when, in fact, the detainee was there.
Second, the MDC’s restrictive and inconsistent policies on telephone access for detainees prevented some detainees from obtaining legal counsel in a timely manner. Most of the September 11 detainees did not have legal representation prior to their detention at the MDC. Consequently, a policy instituted by the MDC that permitted detainees only one legal call per week severely limited the detainees’ ability to obtain and consult with legal counsel.
Further complicating the detainees’ efforts to obtain counsel, the pro bono attorney lists provided September 11 detainees contained inaccurate and outdated information. As a result, detainees often used their sole legal call during a week to try to contact one of the legal representatives on the pro bono list, only to find that the attorneys either had changed their telephone numbers or did not handle the particular type of immigration situation faced by the detainees.
In addition, detainees told us that legal calls that resulted in a busy signal or calls answered by voicemail counted as their one legal call for that week. When questioned about this, MDC officials gave differing responses about whether or not reaching an answering machine counted as a completed legal call. We believe that counting calls that reached a voicemail, resulted in a busy signal, or went to a wrong number was inappropriate.
Moreover, the manner in which the MDC inquired whether the detainees wanted to place a legal call was unclear. In many instances, the unit counselor inquired whether September 11 detainees wanted their weekly legal call by asking, “are you okay?” Several detainees told the OIG that for some time they did not realize that an affirmative response to this casual question meant they had opted to forgo their legal call for that week. We believe the BOP should have asked the detainees directly “do you want a legal telephone call this week?” rather than relying on the detainees to decipher that a shorthand statement “are you okay?” meant “do you want to place a legal telephone call?”
As a result of these policies, it took some detainees a long period of time to even contact a lawyer.
Third, we found that the MDC held detainees in conditions that were unduly harsh. It created a new special housing unit (called the Administrative Maximum Special Housing Unit, or ADMAX SHU) to hold the September 11 detainees until the FBI cleared them. In this unit, the detainees were placed in full restraints whenever they were moved, including handcuffs, leg irons, and heavy chains. Four MDC officers had to be present each time a detainee was escorted from the cell.
The detainees also were subjected to having two lights illuminated in their cells 24 hours a day. This practice persisted even after electricians rewired the cellblock to allow the lights to be turned off individually.
Fourth, we concluded that the evidence showed a pattern of physical and verbal abuse by some correctional officers at the MDC against some September 11 detainees, particularly during the first months after the attacks and during intake and movement of prisoners.1
In the next section, I will summarize the findings from our supplemental review of detainee treatment at the MDC, which investigated in detail allegations of physical and verbal abuse at the facility.
With regard to the allegations of physical and verbal abuse at the MDC, we continued our investigation after our June report and issued a supplemental report in December 2003. In our supplemental report, we concluded that the evidence substantiated allegations of abuse and we recommended that the BOP discipline certain correctional officers. We also described additional problems in how the MDC handled the September 11 detainees.
While we did not find evidence that the detainees were brutally beaten, or subjected to the kinds of abuse that occurred in Abu Ghraib, we did find evidence that some officers slammed detainees against the wall, twisted their arms and hands in painful ways, stepped on their leg restraint chains, and punished them by keeping them restrained for long periods. In addition, we found that some MDC staff made slurs and threats at detainees. We determined that the way these MDC officers handled some detainees was in many respects unprofessional, inappropriate, and in violation of BOP policy.
We also found that some MDC staff acted unprofessionally by placing detainees’ faces against a T-shirt taped to the wall that had a picture of the U.S. flag and the phrase “These colors don’t run” on it. One lieutenant said officers used the T-shirt to “acclimate detainees to the MDC” and send a message to them.
In our report, we also discussed other troubling findings concerning the treatment of detainees at the MDC. Of particular note, we found that the MDC videotaped detainees’ meetings with their attorneys. On many videotapes, we were able to hear portions of what the detainees and their attorneys were discussing. This violated a federal regulation (28 C.F.R. § 543.13(e)) and BOP policy, and it interfered with the detainees’ access to counsel.
We also found other problems in the treatment of detainees. For example, we found that the detainees often were strip searched in public view, sometimes in the presence of female officers, and that many of these strip searches were videotaped in their entirety. We concluded that on occasion staff members used strip searches to intimidate and punish detainees. We observed on videotape an incident in which four staff members cornered a detainee in a recreation cell, ordered him to strip for a search, and threatened that if he did not do what the staff members said they would send him to a penitentiary where he would be treated worse than at the MDC.
One of the most troubling aspects of our investigation was the BOP’s failure to provide us in a timely fashion videotapes showing the treatment of the detainees. In October 2001, the BOP began videotaping detainees whenever they were moved outside of their cells within the MDC. During the course of our investigation, we made several requests to MDC officials for videotapes related to the detainees. However, the officials’ responses to our requests were inconsistent and inadequate. For example, in answer to our requests we often obtained additional videotapes that we previously had been told were destroyed or reused. Moreover, in August 2003 we discovered 308 videotapes in a storage room at the MDC which MDC officials had failed previously to provide to us. Many of these videotapes corroborated allegations by the detainees and contradicted statements made by some correctional officers in our interviews.
Then, in February 2005, over a year after our investigation was completed, the BOP discovered additional videotapes of the detainees at the MDC. We previously had requested many of these tapes, but the MDC had failed to provide them to us. After BOP Headquarters informed us of the existence of these videotapes, we, along with the BOP Office of Internal Affairs, reviewed them. Some of these tapes further supported our findings. We have initiated an investigation, which is ongoing, to determine why these tapes were not disclosed sooner and who was responsible for this delay.
In an Appendix to our December 2003 report, we provided the BOP with our recommendations regarding discipline for specific MDC employees. That section of the report was not released publicly because of the potential of disciplinary proceedings against the correctional officers. In the Appendix and subsequent correspondence with the BOP, we recommended that the BOP consider taking disciplinary action against 13 MDC employees, counseling two additional MDC BOP employees, and informing the employers of four former MDC employees who no longer work for the BOP about our findings regarding them. We also recommended that the BOP take disciplinary action against several other staff members who we observed on videotapes physically abusing detainees or behaving unprofessionally.
Unfortunately, more than 18 months after issuance of our report, the BOP still has not taken any disciplinary action against any MDC employee. The Department initially provided our report to the Civil Rights Division to determine whether criminal prosecution of any individuals was warranted. In March 2004, the Civil Rights Division declined prosecution and the matter was referred to the BOP for appropriate disciplinary action. However, since then the BOP has been investigating and reviewing these matters. We have been in discussion with the BOP about this matter and have expressed our concerns about the length of time it has taken them to address these disciplinary recommendations.
I believe, as I have stated previously, that the disciplinary process in this case has taken far too long. In December 2003, when our report was issued, the Department stated that physical or verbal abuse of any detainee would not be tolerated. Yet, more than 18 months later, the BOP still has not imposed discipline on any individual for any action we described in our report. I understand that the BOP’s review of these matters is in its final stages. I urge the BOP to complete the review expeditiously and take appropriate action.
In addition to recommending discipline for individuals, our June 2003 report and our December 2003 supplemental report made a series of recommendations to address the problems we found with the way the Department, the FBI, and the BOP investigated and handled the immigration detainees in connection with the September 11 investigation. They included recommendations to ensure clearer and more objective criteria to guide classification decisions regarding the handling of immigration detainees, to ensure a more timely clearance process, to require timely notice of charges, to require more careful consideration of where to house detainees and under what kinds of restrictions, to provide better training to staff on how to treat such detainees, to provide better oversight of their conditions of confinement, and to ensure that detainees’ conversations with attorneys are not recorded.
While the Department’s initial response to our report was not one of total agreement, we were pleased to see that the Department accepted most of our recommendations and has taken steps to implement them.
For example, in response to our recommendation that the Department and the FBI develop clearer criteria to guide its classification decisions in cases involving mass arrests of illegal aliens in connection with terrorism investigations, the Department imposed a requirement that the Office of the Deputy Attorney General approve the addition of all new cases to the September 11 special interest detainee list. With respect to future terrorism investigations, the FBI established protocols for classifying aliens suspected of having ties to terrorism.
The FBI also agreed that it would expeditiously provide the Department of Homeland Security (DHS) and the BOP with a statement as to whether or not the FBI had a continued interest in an individual alien who was detained, normally in writing. The Department also agreed that, absent an expression of interest from the FBI within a short period of time, an individual alien should be treated according to routine procedures for handling detained aliens.
In addition, the BOP established a new policy that provides clear and specific procedures for the classification of aliens arrested on immigration charges who may be of interest to a terrorism investigation. This policy also covers telephone access for such inmates, including guaranteed access to telephones for legal calls. Moreover, in response to our recommendation that the BOP take steps to educate its staff that it is illegal to audio monitor attorney-client meetings, the BOP revised its policies to clarify that visits between an attorney and a detainee or inmate may not be audio taped.
Further, the BOP issued new procedures in response to our recommendation that videotapes of detainees with alleged ties to terrorism be retained for longer periods of time. In our investigation, the evidentiary value of the videotapes we reviewed was significantly limited because the BOP policy was to destroy or record over tapes that were more than 30 days old. In response to our recommendation, the BOP has issued a policy that it will keep for at least 6 months all videotapes that depict the escorted movements of inmates who are confined pursuant to national emergencies.
We found that the MDC failed to consistently provide September 11 detainees with details about its Administrative Remedy Program, the formal process for filing complaints of abuse. As a result, we recommended that the BOP ensure that all immigration detainees housed in a BOP facility receive notice of the facility’s policies. In response, the BOP agreed to ensure that immigration detainees receive timely written notice of the facility’s policies, including the procedures for filing complaints.
The DHS also has taken action in response to our recommendations. For example, the DHS issued a new Detention Standard that requires DHS staff to review the conditions of confinement for immigration detainees housed in BOP facilities, including the basis for their classification and placement in highly restrictive units, their access to counsel, and their legal telephone calls and visitation privileges. In addition, the DHS agreed to ensure that immigration officials consistently conduct “post-order custody reviews” for all detainees who remain in custody after 90 days, as required by immigration regulations. Further, the DHS has established procedures to ensure that charging determinations for detained aliens are made within 48-hours, and that the alien is notified of the charges within 72 hours of arrest and detention.
However, in our view two recommendations still have not been sufficiently addressed. The first is the BOP’s delay in implementing discipline, which I discussed above.
The second involves our recommendation that the DOJ, the FBI, and DHS immigration officials enter into a memorandum of understanding (MOU) to formalize policies, responsibilities, and procedures for managing a national emergency that involves alien detainees. A draft MOU has been created and is currently under review by the FBI and the DHS, but it still has not been finalized – 2 years after we made our recommendation. We have been informed recently that a meeting is planned in the near future at which the agencies hope to resolve any outstanding issues so that the MOU can be finalized. We believe enactment of this MOU is critical to ensuring a more effective process for sharing information between agencies and to helping avoid problems such as delays, conflicts, and concerns about accountability that are inherent in having aliens detained under the authority of one agency while relying on an investigation conducted by another agency.
One other matter that I wanted to bring to the Committee’s attention involves an ongoing OIG review that is examining FBI employees’ observations and actions regarding alleged abuse of detainees at Guantanamo Bay, Abu Ghraib, and in Afghanistan. The OIG is examining whether FBI employees participated in any incident of detainee abuse in military facilities at these locations, whether FBI employees witnessed incidents of abuse, how FBI employees reported observations of abuse, and how those reports were handled by the FBI. It should be noted, however, that the actions of military personnel are not within the jurisdiction of the DOJ OIG and therefore are not the subject of the OIG’s review. Rather, those actions are the subject of reviews by Department of Defense officials.
In this ongoing review, the OIG has interviewed detainees, FBI employees, and military personnel at Guantanamo. In addition, the OIG recently distributed a detailed questionnaire to approximately 1,000 FBI employees who served assignments at Guantanamo Bay, in Iraq, and in Afghanistan. The questionnaire requests information on what the FBI employees observed, whether they reported observations of concern, and how those reports were handled. The OIG anticipates receiving responses to its questionnaire shortly, and will conduct appropriate follow-up interviews as necessary. In addition, as part of this review the OIG has received and reviewed FBI records relevant to this investigation.
The OIG’s investigation is ongoing, but we have allocated substantial resources to this review and will attempt to complete it as expeditiously as possible.
This concludes my prepared statement. I would be pleased to answer any questions.